SUPREME COURT OF SAMOA
Police v Lava [2011] WSSC 162

Case name: Police v Lava 
Citation: [2011] WSSC 162
Decision date: 07 June 2011
Parties:
THE POLICE and LEMATUA MALIGI LAVA male of Vaiusu and Tapatapao
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
Mr F Lagaaia for prosecution
Mr H Hoglund for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Aukuso v Police  05 November 1997
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

LEMATUA MALIGI LAVA male of Vaiusu and Tapatapao.
Defendant

Counsels:  Mr F Lagaaia for prosecution
Mr H Hoglund for defendant

Ruling:   07 June 2011

ORAL RULING OF NELSON J
(Alibi evidence)
Defence counsel in this case has indicated for the first time that he intends calling alibi evidence to establish that the defendant was elsewhere on the days and at the times the complainant said he was committing these sexual assaults upon her.  Precise nature of that evidence has not been identified but I take it from what counsel says that the gist of it is what I have just explained.  It is clear no previous notice of such evidence has been given to the prosecution other than an indication by defence counsel orally that the defence will be calling witnesses.  But that is not indicative that alibi evidence would be canvassed by their testimony or indicative of the particulars of such evidence.

In New Zealand the position is governed by legislation which requires notice of alibi be given no later than 14 days post-committal for trial.  See observations of the Chief Justice in the unreported judgment of Aukuso v Police 05 November 1997.  The notice period may well have changed but the legislation requires that particulars of alibi be given.  If not, it cannot be called unless the court grants leave for such evidence to be adduced.  It is not under New Zealand law a complete prohibition but the court retains a discretion to grant leave in appropriate circumstances.
There is no legislation in this jurisdiction providing for the giving of notice of alibi evidence prior to trial.  However the proviso to section 3(1) of the Criminal Procedure Act 1972 provides: 
“As to any matter of criminal procedure for which no special provision has been made by this Act or by any other law for the time being in force in Samoa the law as to criminal procedure for the time being in force in New Zealand shall be applied so far as it shall not conflict or be inconsistent with this Act or any other law for the time being in force in Samoa.”  
The effect of that provision is that where there is a gap in Samoan law as to matters of criminal procedure the law of New Zealand is to prevail unless inconsistent or in conflict with any law for the time being in force in this jurisdiction.  
The Chief Justice did express a reservation as to whether the New Zealand position conflicts with article 9(5) of the Constitution which stipulates that no person shall be compelled to be a witness against himself but declined to rule on the matter as it was not argued fully before him. I follow the same course and do not propose to adjourn this proceeding for a constitutional argument as to whether article 9(5) does conflict with the New Zealand position.  That is matter that can be considered in appropriate circumstances in the future.  
I propose to follow the prevailing provisions under New Zealand law and in doing so I note that there will be no apparent prejudice to the prosecution if the alibi evidence is allowed.  This evidence is said to consist of the defendants evidence supported by that of his brother in law and counsel has sought to put that evidence in cross examination to the complainant while she is on the witness stand.  In due course the defendant and his brother in law will provide this alibi evidence.  
My concern is that if I disallow such evidence it may amount to penalizing the defendant for an oversight on the part of his counsel.  That would be unjust.   The defendant has a constitutional and fundamental right to a fair trial and it would in my view be unfair for him to be punished for counsels oversight. I therefore propose to allow the defendants alibi evidence notwithstanding the lack of notice thereof to the prosecution.  
But that consent is conditional firstly on defence counsel when we adjourn for the day which we will do shortly, immediately providing the prosecution with a copy of the brief of evidence of the brother in law or a copy of his statement outlining the nature of the alibi evidence.  Secondly if any other alibi witness is proposed to be called a similar course is to prevail, a copy of the brief of that witnesses evidence or their statement is to be served forthwith on the prosecution.  The alibi evidence will be put to the complainant for the purposes of cross examination so as to allow her an opportunity to rebut or comment on such evidence.
The final condition is I will consider tomorrow any application by the prosecution to adjourn further the hearing of this matter in view of the late provision of the notice and particulars of the alibi evidence.
.……..………………
JUSTICE NELSON